Insights

Nighat Sahi

Published 27 March 2023
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Menopause and the Workplace Review

February 2023 Update

If you follow us on Twitter or read our regular Insights, you’ll know that we have been following the progress of the Women and Equalities Committee’s report on the menopause and the workplace. Last week saw the much-awaited Government response. Disappointingly, the Government rejected outright five of the recommendations including making the menopause a protected characteristic. In this post, we take a closer look at the Government’s response and where this leaves employers and employees alike.

A quick recap  

In July 2022, the Women and Equalities Committee reported that “current law does not serve or protect menopausal women. There is poor employer awareness of both health and safety and equality law relating to menopause. More fundamentally, the law does not offer proper redress to those who suffer menopause related discrimination”. The Committee warned that the impact of the menopause in the workplace was causing the UK economy to “haemorrhage talent”.

The recent Government report responded to a total of 12 recommendations made by the Committee under the areas of health, the workplace and legal reform.

Menopause and the workplace

Recommendation 1

“The Government should appoint a Menopause Ambassador to work with stakeholders from business (including small to medium enterprises), unions, and advisory groups to encourage and disseminate awareness, good practice and guidance to employers. The Menopause Ambassador should publish a six-monthly report on the progress made by businesses, and such report should include examples of good practice as well as noting particularly poor practice.”

Government response

The Government accepted this recommendation “in principle”. The Government has already committed “to the appointment of a Menopause Employment Champion” in response to a separate report (the Independent Report on Menopause and the Workplace). The role of this Champion will be to drive forward work with employers on menopause workplace issues. In principle, the Government also agreed to six-monthly reporting on progress.

Comment

The Government only committed to appointing the Menopause Employment Champion “in due course” and it remains to be seen when this appointment will take effect and how effective this approach proves to be.

Recommendation 2

“We recommend that the Government, in consultation with the Menopause Ambassador, produces model menopause policies to assist employers. The model policies should cover, as a minimum: how to request reasonable adjustments and other support; advice on flexible working; sick leave for menopause symptoms; and provisions for education, training and building a supportive culture.”

Government response

Although the Government accepted that there is much that employers can do to help employees experiencing the menopause, they rejected the need for a model menopause policy.

The government cited various existing initiatives designed to raise awareness in the workplace and expressed the view that they “want to focus on highlighting and sharing best practice … signposting employers to relevant policies within their industry” which the Government thinks “will be more effective, as employers can then adapt and tailor those policies.”

Some of the initiatives cited included the NHS England National Menopause Care Improvement Programme’s national menopause guidance for the workplace, the next phase of which includes menopause awareness training for line managers and the workforce (to be pioneered within the NHS). The Government also referenced The Workplace Menopause Pledge which encourages organisations to commit to recognising that the menopause is a workplace issue and that women need support.”.

Comment

Although many organisations already have a menopause policy, the rejection of this recommendation misses an opportunity for greater clarity and uniformity when it comes to policy and means many organisations will remain without such a policy for the foreseeable future.

Recommendation 3

“The Government should work with a large public sector employer with a strong public profile to develop and pilot a specific ‘menopause leave’ policy and provide an evaluation of the scheme and proposals for further roll out, within 12 months of commencing the scheme.”

The Government rejected this recommendation outright. It again cited the Civil Service menopause policy, and the NHS as another large, high-profile public sector employer with work underway to develop a model of workplace support, which centres on supporting women to remain and thrive in the workplace. 

By reason of the initiatives cited, the Government reported that it does not believe that introducing or piloting a specific policy for menopause leave is necessary and feels that specific menopause leave could be counterproductive to achieving this goal.

Comment

One of the more controversial recommendations, there was an immediate reaction to the Government’s response with accusations that it demonstrated a “total disinterest in women’s health” and was likely to “persuade more women to leave the workplace”. 

Recommendation 4

“The Government should bring forward legislation before the end of the current Parliament to make the right to request flexible working a day-one right for all employees. It should issue employers with guidance encouraging them to grant any reasonable requests for flexible working, rather than placing the burden on the employee to justify their request.”

Government response

The Government accepted this recommendation. The existing right to request flexible working currently supports all employees with 26 weeks of continuous service. The Government has made a number of other commitments in respect of flexible working requests and is supporting the Employment Relations (Flexible Working) Bill currently going through Parliament which may deliver these changes.

Comment

Whilst this is welcome news, the Bill is currently only at the report stage in the House of Commons (third reading on Friday 24 February 2023). Amendments can still be made to the Bill so it’s a case of watch this space.

Menopause and legal reform

 Recommendation 1

“The HSE and EHRC should publish guidance on the legal considerations when supporting employees experiencing menopause, within the next six months.”

Government response

The Government accepted this recommendation in part stating that the Government is developing strengthened guidance “that will give a set of clear and simple ‘principles’ that employers would be expected to apply, to support disabled people and those with long-term health conditions in the work environment. The guidance could also apply where workers are experiencing symptoms such as those that occur in the menopause”.

Comment

Whilst this is to be welcomed, once again, the Government’s response could be at best described as vague with no firm commitment actually expressed.

Recommendation 2

“The Government should immediately commence section 14 of the Equality Act 2010.”

Government response

Section 14 of the Equality Act 2010 prohibits direct discrimination on the basis of a combination of no more than two of the following protected characteristics: age; disability; gender reassignment; race; religion or belief; sex; and sexual orientation. Section 14 is not yet in force and the Government rejected this recommendation.

Comment

Despite widespread calls for section 14 to be brought into force, the Government continues to express concerns about the significant additional burden that this would place on employers and service providers and the potential for creating new areas of dispute over self-identity and hierarchies of rights.

Recommendation 3

“The Government should launch a consultation on how to amend the Equality Act to introduce a new protected characteristic of menopause, including a duty to provide reasonable adjustments for menopausal employees.”

Government response

Another of the more controversial recommendations, this was also rejected outright by the Government.

Comment

The Government expressed the view that sex, age, and disability are all protected characteristics in the Equality Act 2010 which already provide protection against unfair treatment of employees going through the menopause.

The Government also expressed concern that the changes could have “unintended consequences which may inadvertently create new forms of discrimination, for example, discrimination risks towards men suffering from long-term medical conditions or eroding existing protections.”. The Government’s response also expressed concern that the necessary changes to the Equality Act would require a more substantial overhaul of the Act which it felt would “necessarily be some years away”. For that reason, the Government reported its intention to work within the existing legal structure. This was a greatly anticipated initiative and the Government’s response will be seen by many as disappointing.  

Menopause and health

The Women and Equalities Committee’s report made a further five recommendations in respect of women’s health. These included recommendations about a visible public health campaign around the menopause, training for the medical professional and access to / the cost of prescriptions for HRT.  The Government’s response was mixed, with only one recommendation being accepted in full but in principle only and the majority being accepted in part. One recommendation (that there should be a menopause specialist or specialist service in every Clinical Commissioning Group area) was rejected outright.  

Whatever your view of the Government’s response to the Committee’s recommendations and attitude towards women’s health, the menopause in the workplace is likely to remain an important and sometimes contentious issue for the foreseeable future. Many employers and employees may lament the continued lack of clarity and the need for careful consideration of the issues caused by the menopause has never been greater.

If you’d like to discuss an issue concerning the menopause in the workplace, please get in touch.

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